CITY NEWPORT v. IACOBUCCI

CITY OF NEWPORT, KENTUCKY, ET ALv.IACOBUCCI, DBA TALK OF THE TOWN, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Author: Per Curiam

[ 479 U.S. Page 92]

In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell

[ 479 U.S. Page 93]

liquor for consumption on the premises.*fn1 A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981) (per curiam), as being within the State's broad power under the Twenty-first Amendment*fn2 to regulate the sale of liquor within its boundaries.

Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U. S. C. § 1983 against its enforcement.*fn3 The District Court ruled that the ordinance was constitutional, stating that it "is squarely within the doctrine

[ 479 U.S. Page 94]

of Bellanca. . . and must be upheld on that basis." App. to Pet. for Cert. 50a.

A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. 785 F.2d 1354 (1986). It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth's Constitution,*fn4 Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky. Rev. Stat. §§ 242.010-242.990 (1981 and Supp. 1986). Noting this Court's statement in Bellanca that "[the] State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs," 452 U.S., at 717, the Court of Appeals' majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca "doctrine" or "rationale" because the city "cannot exercise in part a power it does not hold in full." 785 F.2d, at 1358. The court remanded the case for a determination, among other things, of the city's authority to enact the ordinance under its police power. The dissenting judge argued that the majority read Bellanca too narrowly, and he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry.

We agree with the dissent's conclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of

[ 479 U.S. Page 95]

the Twenty-first Amendment is certainly not without limit,*fn5 but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States.

"While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals." California v. LaRue, 409 U.S. 109, 114 (1972).

This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. "In LaRue. . . we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program." Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975). In Bellanca , the Court upheld a state statute imposing just such a ban.

The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the "doctrine" or "rationale" of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without ...

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